COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM LINCOLN COUNTY COURT
Mr Recorder Maw
London, WC2A 2LL
B e f o r e :
LADY JUSICE ARDEN
MR JUSTICE HOLMAN
| TIMOTHY WILTSHIRE
|- and -
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Mr Thomas Keith (for the Bar Pro Bono Unit, assisted by Freshfields Bruckhaus Deringer) for the Appellant
Mr Jeremy Janes (instructed by Jones & Co, Nottingham) for the 2nd, 3rd and 4th Respondents
Mr Powell (The First Respondent) appeared in person
Crown Copyright ©
Lord Justice Latham :
"Furthermore, the curious transactions in respect of these aeroplanes do not reflect well upon Mr Ebbs and I am entirely satisfied on the evidence that I have heard thus far, even without requiring further evidence from Mr Wiltshire, that at the material time the Piper Cub was sold without the necessary authority of the Spilsby Soaring Trust; secondly that Mr Wiltshire accepted the de facto position and accepted the purchase of the Rallye G-AVVJ in substitution of it; and, further, that on or about 24th July 1998, Mr Ebbs again without authority and possibly dishonestly, sold or transferred, or purported to sell or transfer, that Rallye to a syndicate consisting of three persons: Paul Etherington, Derek Heapy, who was a witness in the case, and one Peter Storey. I am quite satisfied that that was done in the full knowledge that injunctive proceedings had already been started, if abortedly, in the County Court and had been transferred to the High Court, and that was a sale made to defeat any order freezing its disposal. The order which was made was too late.
I do not see why in these circumstances Mr Wiltshire, as trustee of the Spilsbury Soaring Trust, should not be able to pursue that aeroplane and take such steps as he may against the current possessor of it for its return, for it seems to me, in the circumstances, no title could have passed to the trio purported to buy it from Mr Ebbs or to any person whom that trio purported to pass on that aircraft. I should say here that those gentlemen clearly knew the background of the dispute to the ownership of the Rallye."
"Parties and privies. A judgment in personam or inter partes raises an estoppel only against the parties to proceedings in which it is given and their privies, for example those claiming or deriving title under them. As against all other persons it does not prejudice the persons before the court, and with certain exceptions, although conclusive of the fact that the judgment was obtained and of its terms, is not admissible evidence of the facts established by it.
Privies are of three classes:
(1) privies in blood, for example, ancestor and heir;
(2) privies in law, for example (formerly) tenant by the curtesy or in dower, and others that came in by act in law, for example testator and executor, intestate and administrator, bankrupt and trustee in bankruptcy;
(3) privies in estate or interest, for example testator and devisee, vendor and purchaser, landlord and tenant, a husband and his wife claiming under his title and a wife and husband claiming under hers, successive incumbents of the same benefice, assignor and assignee of a bond, and the employee of a corporation defending a claim of trespass at the cost of his employers and justifying under their title and the corporation itself.
A judgment of ouster against a corporator would be conclusive evidence against another deriving title under him, for example by his vote.
It is not easy to detect from the authorities what amounts to a sufficient interest. The question seems to be determined by an examination of the factual identity of interests of the parties and the fairness of binding them by a decision in which they were not represented."
"231. The reasons supporting the application of estoppels to privies were explained by Cababe:
"….. although the estoppel is only a personal matter between the particular parties yet to really give the parties the benefit of it, and subject them to the burden of it, it is essential that not they only, but those of whom it can be predicted that they are their representatives in interest should likewise have the benefit of and be subject to the burden of the admission. Upon anyone therefore upon whom all the rights and obligations of any legal entity devolve such as an executor, administrator or trustee in bankruptcy, there will devolve, as one of such rights and obligations, the right to exact or the obligation to be subjected to, the admission; and so too upon any one upon whom the right and obligations arising out of the particular transaction that gave rise to the estoppel devolve, as, for example, a purchaser or assignee, that will also devolve this right and this obligation."
Res judicata estoppels operate for, or against, not only the parties, but those who are privy to them in blood, title or interest. Privies include any person who succeeds to the rights or liabilities of the party upon death or insolvency, or who is otherwise identified in estate or interest. It is essential that the party to be estopped by privity must have some kind of interest, legal or beneficial, in the previous litigation or its subject matter. Privity was described by the US Supreme Court as a mutual or successive relationship to the same right of property, although this cannot be exhaustive. Hence assignees will be bound as privies of the assignor.
Privity is not established by proof of curiosity or concern in the litigation, or "some interest in the outcome". Megarry V-C proposed, as the test of a privity in cases which did not fall into any recognised category, the existence of "a sufficient degree of identification between the two parties to make it just to hold that the decision to which one was party should be binding in proceedings to which the other was party." This has been criticised as circuitous and not helpful in identifying when the necessary degree of identification is present."
"Second, it seems to me that the sub-stratum of the doctrine is that a man ought not to be allowed to litigate a second time what has already been decided between himself and the other party to the litigation. This is in the interest both of the successful party and of the public. But I cannot see that this provides any basis for a successful defendant to say that the successful defence is a bar to the plaintiff suing some third party, or for that third party to say that the successful defence prevents the plaintiff from suing him, unless there is a sufficient degree of identity between the successful defendant and the third party. I do not say that one must be the alter ego of the other: but it does seem to me that having due regard to the subject matter in dispute, there must be a sufficient degree of identification between the two to make it just to hold that the decision to which one was party should be binding in the proceedings to which the other is party. It is in that sense that I would regard the phrase "privity of interest"."
"A passage has been cited from Com. Dig. Evidence, A5, where it is said that "a verdict in another action in the same cause may be allowed in evidence between the same parties. So, it shall be evidence, where the verdict was for one under whom any of the present parties claim." But that must mean a claim acquired through such party subsequently to the verdict: if, as it has now been argued, the rule could be extended to parties claiming other lands under the same title previously to the verdict, the effect of such a verdict might be carried back for a hundred years. None of the cases support such a proposition."
"According to the clear principles of the law of estoppel, it is necessary, in order to estop the objector, to show that he derives title under Dwyer by act or operation of law subsequent to the recovery of the judgment. If this is shown it is reasonable that he should be estopped, because his estate was represented at the time of the recovery of the judgment though not in his person"
"Any contention which leads to the conclusion that a person is liable to be condemned unheard is plainly open to the gravest of suspicion."
"Those instances do not however cover this case, which is not one of active participation in the previous proceedings or actual benefit from them, but of standing by and watching them form out most giving evidence in support of one side or the other. In order to determine this question the West African Court of Appeal quoted from a principle stated by Lord Penzance in Wytcherley –v- Andrews (1871) LR 2 P. and M. 327, 328. The full passage is in these words:
"There is a practice in this court, by which any person having an interest may make himself a party to the suit by intervening; and it was because of the existence of that practice that the judges of the Prerogative Court held, that if a person, knowing what was passing, was content to stand by and see his battle fought by somebody else in the same interest, he should be bound by the result and not be allowed to re-open the case.""
Lady Justice Arden :
A claims ownership of an aeroplane held by B.
B sells the aeroplane to C.
C sells the aeroplane to D.
In action brought by B against A, A obtains a declaration against B that he owns the aeroplane. C and D are not parties to this litigation.
A contends that the judgment which he has obtained against B is binding on D.
"2. The aeroplane described as the Rallye G-AVVJ was at all material times the property of Timothy James Wiltshire as trustee of the Spilsby Soaring Trust and remained such at the time, on or about the 4 July 1998, of its purported sale to Messrs Paul Etherington, Derek Heapy and Peter Storey."
"The jurisdiction of the Court to make a declaration of right is confined to declaring contested legal rights, subsisting or future of the parties represented in the litigation before it …"
"…although the estoppel is only a personal matter between the particular parties yet to really give the parties the benefit of it, and subject them to the burden of it, it is essential that not they only, but those of whom it can be predicted that they are their representatives in interest should likewise have the benefit of and be subject to the burden of the admission."
"According to the clear principles of the law of estoppel it is necessary, in order to stop the objector, to show that he derives title…by act or operation of law subsequent to the recovery of the judgment. If this is shown it is reasonable that he should be estopped, because his estate was represented at the time of the recovery of the judgment though not in his person."